Four Roads to a Texas Injunction

It's not just the destination, it's also the journey


Let's take a legal realist approach for a minute.

I don't necessarily disagree with any of Steve's legal analysis of the Texas lawsuits (although I am still on the fence about the US suit myself). But it does seem likely from oral argument that a majority of the Court does. As I read my tea, five or six justices are strongly inclined to authorize some kind of lawsuit that can get some kind of relief against the enforcement of the law.

But it is not clear on what basis. Precisely because of how the law was designed to work around existing doctrine, every path to an injunction will require doing something a little odd. As I listened to the argument, I counted four paths being seriously mapped out:

  1. Say that private plaintiffs can get an injunction against state judges and/or state clerks, not withstanding dicta in Ex Parte Young and notwithstanding the seeming neutrality of what the judges and clerks are doing so far.
  2. Say that the private plaintiffs can instead get an injunction against the Texas Attorney General, naming him as the defendant under Ex Parte Young, under the fiction that he has something to do with the private plaintiffs who can sue under the act, even though he doesn't. (This seemed to be Justice Kagan's favored approach.)
  3. Say that the United States has a cause of action notwithstanding the limits of In re Debs, and that Texas is the proper defendant in such a suit notwithstanding the puzzles about how an injunction can operate against an abstract sovereign entity (some of which seem to re-open questions 1 or 2).
  4. Mumble, mumble. Say something like: In an ordinary tort case, of course you would have to go through the state courts. But this is not an ordinary case for 6-9 reasons, which will be listed but not fully explained. (This seems to be Justice Breyer's approach.) I'm still not totally certain what relief would actually issue after the reasons are recited.

(These are not the only possibilities. I could also imagine the Court instead encouraging a collusive suit, or writing a Marbury-style advisory opinion that simultaneously affirmed but announced the unconstitutionality of the law, or homing on the Fifth Circuit's dubious assumption of interlocutory jurisdiction over part of the case. But if any of those are on the table, we didn't see them.)

Again, even if we assume that the Court knows what destination it wants to reach, it still has to pick a path. And it seems to me that each path has advantages and disadvantages, each skirting a different fence that might have been erected for a reason.

As a matter of legal doctrine, 3 is probably the least weak argument, in part because there is so little precedent in sovereign-sovereign suits. On the other hand, some justices seemed especially nervous about 3 because it seemed so unusual, which it is. If you instead focus on "seeming normal," then 2 or even 1 might be a better path -- we are all used to Ex Parte Young suits, so even if it is doctrinally chancier, expanding Ex Parte Young may seem less weird than allowing a sovereign suit. Or if the goal is just to do as little damage to the existing doctrine as possible, 4 recommends itself, since the opinion could as good as say "don't try this at home, we're just doing this to ensure that we can maintain judicial supremacy."

I'm not saying I endorse results-first decision making, or judicial supremacy for that matter. But even for those who do, there are going to be some interesting questions about how to get there.

NEXT: No, Noah Feldman, Lincoln Did Not "Ignore" Taney

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  1. It doesn't really matter what the arguments are or what the Constitution says. Thanks to decades of progressive control of the media and pop culture influence abortion is engrained as a fundamental 'right' in the mind of some current generations.

    Just as having diverse sexual orientations in every movie is suddenly an indispensable part of filmmaking and all the Obama era regulations were suddenly longstanding indispensable precedents once Trump threatened to overturn them. So too has abortion been elevated into some mythological cultural bedrock by the power of narrative.

    Regardless of what is actually true or the strength of this or that philosophical argument overtturning such an institution is now unthinkable to some like replacing bread in sandwiches with cucumbers or suddenly tying shoelaces a different way.

  2. Judicial Superiority Uber Alles is such an important principle that it doesn't need sound legal doctrine to support it.

    1. Not Uber Alles. Texas can enact a normal abortion law and defend a normal court challenge.

      This is about one state deciding to try and defeat the application of constitutional law to its enactments. And that's unconstitutional and demands a remedy.

      1. The remedy would be the judiciasry ruling on the constitutionality of S.B. 8 in a lawsuit.

      2. SB8 accomodates Casey, but anticipates the possibility that Casey might be overturned. It anyway does not attempt to "defeat the application" of any "constitutional law" (strange locution -- Casey is not a law) to its enactments

  3. Let’s look at Justice Thomas’ suggestion in a little more detail.

    In a civil tort system, private plaintiffs are suing to redress their own injuries. They have to prove they have been injured in a specific way, which constitutes an essential element of the tort.

    In a private attorneys general system, on the other hand, plaintiffs don’t have to prove they have been personally injured in any specific way. They may have to show some sort of connection to obtain standing due to other rules, but there is no specific injury being addressed. Any connection will do.

    It is therefore reasonable to say that in a private attorneys general system, plaintiffs are not suing to recover fot their own injuries. The party injured is the state (due to its laws and policies being thwarted). This in turn makes it reasonable to say they are suing on behalf of the state. They are state agents.

    If we accept this reasoning, it makes them amenable to suit under Ex Parte Young.

    Now, there are of course many other statutory schemes that have private enforcement mechanisms that are functionally private attorneys general as one (but not the only) enforcement mechanism.

    Who would one sue for a pre-enforcement action in one of the existing statutory schemes that also permit freestanding “to the limits of standing” private attorneys general enforcement?

    Plaintiffs never attempt to sue would-be private attorneys general in these cases. They just sue the attorney general. If Texas is right, that wouldn’t be enough. Enjoining the attorney general in a pre-enforcement action wouldn’t stop the alternative private attorneys general mechanism. If they aren’t the attorney general’s agents, you’d think they’d be perfectly free to proceed merrily along with their own lawsuits.

    But it DOES stop them. We’ve had private attorneys general systems for quite some time in this country. And it’s always been understood that when the law with such a scheme and the state agents are enjoined, all those would-be private attorneys general don’t have to be individually enjoined as well.

    And why is this?

    Because it’s been understood for a long time that private attorneys general are not just implicitly acting as state agents, but are implicitly acting on behalf of the usual named state officials.

    This understanding doesn’t depend on what the officials themselves do. Why should it depend on what they have the power to do?

    The fact that private attorneys general schemes aren’t new works in both directions.

    1. To me, the key difference with private attorney general systems is those statutes are enacted to serve other policy goals unrelated to judicial review, and their provisions serve those ends.

      What the fans of SB8 cannot get around is that the purpose of this statute was not to provide some specific remedies that would further some particular social policy. It was to get around judicial review so that abortion providers would fear delivering services that SCOTUS has held to be a constitutional right.

      1. What the fans of SB8 cannot get around is that the purpose of this statute was not to provide some specific remedies that would further some particular social policy. It was to get around judicial review

        Which is obvious from the fact that SB8, uniquely among PAGA schemes, actually forbids state officials from enforcing the law or intervening in the suits. (Though it very carefully clarifies that they have no problem with state officials participating as amici.)

        1. What if it were to be posited that the social policy aim/end/purpose (legislative intent) is to protect unborn life to the maximum extent possible under current SCOTUS doctrine?

          Would that be a permissible state interest to be articulated and pursued by a political branch of state government?

      2. That’s true. But I think the Justices’ real concern is not obtaining the narrowest possible formulation for its own sake, but obtaining one that’s both simple and not dangerously expansive.

        The private attorneys general/ordinary civil tort distinction might meet this. If the framework turns out to apply to other private attorneys general schemes, as I suspect it would, it wouldn’t seem to make any difference.

        After all, where the private attorneys general enforcement mechanism works in parallel with the state officials, we already say that suing the state officials also reaches prospective attorneys general. So extending this to cases where there is no parallel, the private attorneys general mechanism is the only one, and suing the attorney general to reach prospective private attorneys general there as well, is a far lesser extension of existing law than suing judges, court clerks, and whatnot.

        And if the case results in future pre-enforcement suits tacking on “and agents” to suits against the attorney general where there is a parallel private attorneys general mechanism, that probably wouldn’t be such a stupendous consequence.

      3. The court could send the case back with instructions to distinguish between cases where the plaintiff would have Article III standing (or something close enough to it under Texas law) and consider all other cases to be actions in the name of the state notwithstanding the lack of "ex rel." in the caption.

        But I think more likely we'll end up with 3 "death to Texas judges" - 3 "split the baby" - 3 "what, me worry?"

      4. "It was to get around judicial review so that abortion providers would fear delivering services that SCOTUS has held to be a constitutional right."

        It was formulated to prevent an injunction. Not to prevent review.

        So, it would seem reasonable and equitable to move forward with a court case, without first issuing an injunction. IANAL

        1. It was formulated to prevent review. There's whole bunch of provisions to try and prevent full undue burden review even of the private lawsuits.

          1. Quote one.

            Actually undue burden under Casey is a complete defense under explicit provisions of SB8.

            I'll make it easy for you to try. And fail:

            1. Even if you were right (and you are not), the Supreme Court disagrees with you, as evidenced by the fact that SEVERAL justices asked about that very issue in oral argument yesterday.

              1. I've linked the the text of the law. If you want to assert that I am wrong to say, "Actually undue burden under Casey is a complete defense under explicit provisions of SB8" you need to do better than ipse dixit or appeal to bogus (without a quote, possibly fictional) authority.

                Do you even have a clue as to what section of the law I'm talking about?

          2. Nothing about (allegedly inadequate) defenses in the text of SB8 prevents the defendant in an SB8 suit from asserting that any part or all of it is unconstitutional under some part of the state or federal constitution. The reason is obvious: Whatever the constitution requires or prohibits trumps the statute text in the event of conflict or omission (in the latter). In to other words, viable defenses based on the constitution (or judicial construction thereof by a superior court) do not have to be defined or expressly recognized in the statute text.

    2. If I had to put my money on an outcome, I'd pick that private attorney general route.

      1. No Private AGs in Texas & AG Paxton Even Adverse to Texas Consumers at Times

        Hopefully the SCOTUS with the aid of savvy law clerks will discover that the concept of "private attorney general" is alien to Texas law, and that the concept of a private AG is an oxymoron in the Lone Star State.

        Second, even if the SCOTUS were to see fit to impose the label "private attorney general" on private plaintiffs suing on statutory provisions that allow for private enforcement in addition to civil enforcement actions by the AG, the private individuals are NOT under the control of and subject to the direction of the AG. No agency relationship whatever. Indeed, sometimes the private claimants compete with the AG with claims against the same wrongdoer.  

        Example in point: State of Texas v. Samara Portfolio (AG consumer protection case) and Serna v. Law Office of Onwuteaka (private FDCPA case).

        Both AG/Consumer Protection Division and private plaintiff Serna got judgments for debt collection abuses by the same defendants. The AG collected at least part of the State's multi-million dollar judgment by reaching an agreement with the defendants (Appeal dismissed per settlement in No. 14-17-00806-CV) while the private plaintiff had a lot of trouble just collecting the attorney's fees from the federal case incl. Fifth Circuit appeals (about $72K in all) against the same defendants under the FDCPA. Serna v. Law Office of Joseph Onwuteaka, P.C., No. 14-20574, 2015 WL 3526977 (5th Cir. June 5, 2015).

        The AG made his recovery on behalf of the State, but years later, Serna's attorney was still trying to collect on his hard-won judgment. See Law Office of Joseph Onwuteaka, P.C. v. Serna, 605 S.W.3d 896 (Tex.App.- Houston, July 16, 2020, pet. denied 11/13/2020)(appeal from post-judgment receivership proceeding concerning domesticated federal judgment).

        Bottom line: AG and private plaintiffs operate independently from each other, and can even find themselves competing for limited nonexempt assets to satisfy their respective judgments. 

  4. It’s telling that Professor Baude doesn’t mention that Justice Thomas suggested private attorneys general could be regarded as suing on the state’s behalf and hence as enjoinable as state agents under Ex Parte Young. It’s not quite as wacky an uber-liberal idea as all that.

  5. At the end of the day, the constitution forbids the State and the states (as amended) from abridging constitutional rights. Nothing about that analysis changes when the state contracts out its legal enforcement mechanisms. And it is the state responsible here - they passed the laws (which specifically violates the 14th amendment).

    So it's obvious Texas is wrong, and Texas is responsible. I'd think the correct target for the suit would be the Texas legislature. And the Supreme Court should be able to require them to repeal the law. (If they can compel non-enforcement of unconstitutional laws, why can't they compel other specific performance from government employees? A constitutional amendment that specifically forbids particular legislative action would seem to imply that kind of outcome, since its the only possible remedy that's universally applicable).

    This principle is self-limiting in that it only applies if a law is unconstitutional. If it needs further limiting, the Supreme Court could limit such an 'extraordinary' remedy to when the legislature has taken pains to shield the law from being challenged in court.

    Also, if a court decides that ex post facto punishments/penalties aren't kosher (ie, SB 8's 4 year limit, that can cover behavior which was constitutionally protected at the time it happened), wouldn't that necessarily involve binding lower courts? It's not clear to me why judges can't be enjoined from enforcement, since they're routinely effectively enjoined by controlling precedent.

    1. "...they passed the laws [plural?] (which specifically[???] violates the 14th amendment)."

      No, SB8 doesn't.

  6. Why struggle over remedies? The problem is that SB8 chills an ostensible right, and was tailored to evade judicial scrutiny. Why not just counter-chill SB8?

    Announce from the Justice Department that SB8 as written invites attempts to deprive women of civil rights under color of law, which is a federal crime. Warn the world that any attempt to take action pursuant to the terms of SB8 will be federally prosecuted as felony deprivation of civil rights under color of law. Sue anyone over abortion, and go to jail. Collect $10,000, and go to jail. Pay $10,000, and go to jail.

    That ought to quash the SB8 nonsense, and also send a sufficient warning to ward off similarly-styled attacks on other rights.

    Then everyone can get back to the business of fighting over whether abortion ought to be protected as a right.

    1. In fantasy world announcements by the Justice Department are as good as convictions.

    2. Even better: Make it a de facto crime to file any civil lawsuit. That way, the clerks won't have to go to the trouble of sorting out the pro-life plaintiffs for Sonderbehandlung ("special treatment").

  7. "Announce from the Justice Department that SB8 as written invites attempts to deprive women of civil rights under color of law, which is a federal crime."

    Not all abortions are protected by Roe and Casey.

    1. I forget, was it Gorsuch or Alito who pointed that out?

      But telling anyone on Team Stupid that SB8 has unquestionably constitutional applications, or that it explicitly exempts cases of undue burden per Casey so long as Casey is the ruling precedent, is a waste of time. Their eyes glaze over like Frank Sinatra in "The Manchurian Candidate" and the pre-recorded talking point is repeated just as if you hadn't pointed out that it is nonsense.

  8. I don't understand why the process can't just play out normally. There are millions of potential defamation plaintiffs who's claims fail the NYT v. Sullivan test. Yet, we don't fear those will overwhelm the system. Why is there a difference?

    There isn't. If you are sued under SB8/For Libel, you can assert your constitutional defenses, including that the fee shifting provision violates due process and equal protection. Bam, if you are correct on SB8 restricting abortion unconstitutionally you achieve total victory on the pleadings every time. Its even easier than the NYT v. Sullivan status quo (whence the need for Anti-SLAPP laws, because there are actual factual disputes in libel cases).

    The only reason to particularly fear this law is if you think TX judges will continually violate a pro-abortion ruling on the constitutionality of a heartbeat bill. But this phenomenon could happen in abortion already, and we don't see it. We do see it somewhat in gun control, but those laws don't even have this "special" enforcement mechanism. State actors in, say, NY or CA violate the law and judges support them. It happens.

    The real problem is SCOTUS laziness.

    1. Of course the process could play out normally. No judgements have been awarded, and if SB8 is followed none can, except of things like late-term abortions not protected by Casey, unless the trial judge violates the law. And then a State court appeal should fix that.

      What on earth is Thomas thinking that he wants to invent enjoining the world against filing suit to prevent *nothing* from happening? I mean I was expenting swamp creature nonsense from Kennedy's Choice and Roberts-in-a-skirt, and you never know what you're going to get from Gorsuck, but usually Thomas doesn't go around the bend like this.

  9. Building on path 2, an AG is a proper defendant for perhaps another reason. The focus has been on the front end of a lawsuit, but the back end is also important. On the back end, a judgement, by itself, is not worth much without the means to collect on it or enforce it. The AG is a proper defendant under path 2 because the AG (or whoever has control over the sheriffs) plays a crucial role in the collection or execution of a judgement (even if just as a backdrop). On this theory, a court could enjoin the AG or sheriffs from assisting in the collection or execution of a judgement against a provider (or taking any other action as a result of the judgement); any prevailing plaintiff under SB8 would have only a judgement that is uncollectible and unenforceable. (At least in Texas -- a problem with this theory for the WWH plaintiffs, and I'm sure I'm missing others, is that comity might require other jurisdictions to recognize the judgement.)


      With all the respect that is due (not much), Mr Lengell should read up on Texas law and governmental structure before before offering nonsensical prescriptions.

      The Texas AG has nothing to do with judgment enforcement in civil cases generally (unless the state is a party, such as in collection of delinquent taxes or state student loans, or the OAG is providing child support services). Sheriffs are not essential either given the availability of judgement enforcement methods other than execution on nonexempt property. And just like district clerks, district judges, and other county-level officials, sheriffs are locally elected.

      Article V, Sec. 23.  SHERIFFS.  There shall be elected by the qualified voters of each county a Sheriff, who shall hold his office for the term of four years, whose duties, qualifications, perquisites, and fees of office, shall be prescribed by the Legislature, and vacancies in whose office shall be filled by the Commissioners Court until the next general election.  

      These officials are not controlled by the Attorney General, who is the state's chief lawyer, not its chief law enforcement officer. Criminal prosecutions are almost exclusively handled by DAs and county attorneys. And these public prosecutors are not even part of the executive branch. See Article V titled "Judicial Department", Sec. 21.  COUNTY ATTORNEYS; DISTRICT ATTORNEYS.

      The domestication of foreign (including federal) judgements is governed by the Uniform Enforcement of Foreign Judgments Act (UEFJA), Tex. Civ. Prac. & Rem. Code §§ 35.001-.008 (see Serna case, supra, as an example) rather than by  comity, and the genesis of the judgment obligation is irrelevant. It's typically not even apparent on the face of the judgment unless it's a divorce decree or a SAPCR order which has many specific mandatory content requirements. (SAPCR = Suit affecting parent-child relationship).

      There would be  nothing special about  judgments resulting from SB8 suits (if any are ever entered), at least with respect to the monetary component, which would be the basis for the recording of an abstract of judgment in the real estate records to perfect a lien on the debtor's real property in the county (in the event it is not promptly satisfied by the judgment debtor).

      And finally ... to point out that state/government is involved in the judicial process is ... well ... stating the obvious; ergo trite.  

      The very concept of law - private or public - makes little sense in the absence of courts. And even private dispute settlement mechanisms, such as arbitration, depend on pertinent statutes (FAA, TGAA) to assure smooth operation and fairness, and the public court system for enforcement of arbitration awards as judgments if necessary. Not to mention that the metric measuring the size of the financial obligations reduced to judgment involves fiat currency, not gold. So, government there too. Federal even. 

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